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2394
cause, as admitted by the Senator from Wisconsin, we have a 
right to give to the judge for whom we provide a life tenure, if 
we see fit. although it is a Territorial court. 
Mr. SPOONER.   I have not denied that. 
Mr. FORAKER.   I say the Senator from Wisconsin has ad- 
mitted it. 
Mr. SPOONER.   But will the Senator from Ohio permit me? 
Mr. FORAKER.   Certainly. 
Mr. SPOONER.    Can we give him a four years' tenure? 
Mr. FORAKER.   We can give him a four years' tenure or a 
four months' tenure. 
Mr. SPOONER.   Can we give to the judge of a constitutional 
court anything less than a life tenure? 
Mr. FORAKER.   Certainly not; and I have said that as re- 
peatedly as I have had occasion to say it in the course of this de- 
bate.   But what I want to say is that there are two provisions in 
the Constitution under either one of which Congress may proceed 
in legislating for a court in a Territory.   It can proceed under 
that authorizing it to legislate for Territories, and then, of course, 
it will create a Territorial court.   But I do not know of anything 
in the Constitution that prevents Congress from proceeding under 
the judicial article to create a court that would have a life tenure 
and have the constitutional jurisdiction. 
Now, ordinarily, they have given to the Territorial courts a 
jurisdiction that was not the constitutional jurisdiction, and the 
Supreme Court of the United States has pointed to that fact as a 
reason why the legislation was intended to create a Territorial 
court, or that Congress has given less than a life tenure as another 
reason why it should be regarded as a Territorial court.  Now, I 
say, 
and that is all I want to say about it, we have a right to create a 
court for that Territory, and in creating that court we can pro- 
ceed under the power to legislate for the Territories given in the 
Constitution or under the judicial article of the Constitution. 
Now, when they legislated for the Territory of Louisiana, un- 
doubtedly they proceeded under the judicial article of the Consti- 
tution, for what they did when they created a court for Louisiana 
was to say that Louisiana should be a district and should have a 
district court, and the judge of the district court should have the 
constitutional jurisdiction; and they said the jurisdiction of that 
judge should be precisely the jurisdiction conferred by the act of 
1789 on the court for the Kentucky district.   Nobody will pretend 
that the Kentucky district was not a constitutional court. 
When they came to fix the tenure, having given to that court 
the constitutional jurisdiction, they gave to it the constitutional 
tenure.   That is to say, they did not fix any tenure at all.   That 
meant necessarily that it was for good behavior, and in the case 
of Sere vs. Pitot, Chief Justice Marshall, having occasion to review 
a decision of that court, referred to it as a court of the United 
States.   He did not say it was a constitutional court, but he spoke 
of it as a United States court for the district of Louisiana in con- 
tradistinction to a Territorial or a legislative court in that Terri- 
tory.   It seems to me, in short, that the true test by which to 
determine whether a court is a legislative or a constitutional court 
is not locality, but jurisdiction and tenure. 
Now, all I want to say further is that if it be conceded, as the 
Senator from Wisconsin does concede, that Congress has full power, 
proceeding under that clause of the Constitution authorizing us 
to legislate for the Territories, to create a court with constitu- 
tional jurisdiction and the judge with a life tenure, then he is 
conceding all that the framers of this bill claim for this provision, 
and I do not care whether you call it a constitutional court or a 
Territorial court; the enactment will be valid, for the question 
constantly recurs. Is this section valid which we are proposing to 
enact?   Is it within the power of Congress to enact it?   If so, as I 
think it is, then follows the question of policy, and that is all. 
Mr. SPOONER,   Mr. President -- 
Mr. HOAR.   Will the Senator from Wisconsin allow me? 
Mr. SPOONER.   If I may presume after this great lapse of time 
to bring myself humbly to the attention of the Senate again in 
this debate upon this question, I yield to the Senator from Massa- 
chusetts, 
Mr. FORAKER.   I hope the Senator from Wisconsin will ex- 
cuse me -- 
Mr. SPOONER.   I do. 
Mr. FORAKER.   If I interrupted him improperly. 
Mr. SPOONER.   I do. 
Mr. FORAKER.   I was particular before commencing to in- 
quire whether he had concluded.  
Mr. SPOONER.   I did not hear that. 
Mr. FORAKER.   I thought he answered me that he had. 
Mr. HOAR.   I have been so engrossed in other matters that 
I have not given the investigation I ought to give to this special 
question, which is imminent upon us in a thousand ways.   The 
Senator from Ohio has given attention to it.   He is the author, 
or at any rate the sponsor, of a bill which is intended to affirm 
the legislative authority of the United States over an important 
possession lately acquired.

Now, the question which I put to him was an exceedingly prac- 
tical question in regard to the very matter on which we are going . 
to vote when we vote next on this bill, to wit, whether in a bill 
which already contains a provision for five ordinary Territorial 
judges, which I concede and which he affirms, and you may add 
with jurisdiction over the entire Territory is within the power of 
Congress, a constitutional court with the constitutional life ten- 
ure, having its authority under the clause in the Constitution 
which provides for the creation of judicial officers other than the 
Supreme Court of the United States, I asked my honorable friend 
whether in his judgment he thought we could have the two kinds 
of court in the same possession. 
Mr. FORAKER.   Undoubtedly. 
Mr. HOAR.   Very well; that is what -- 
Mr. FORAKER.   I thought I was misunderstanding the Sena- 
tor a moment ago, because I had been just saying that. 
Mr. HOAR.   That is all I asked him, and I put it as preliminary 
to another question. 
Mr. FORAKER.   Now let me add what upon our own experi- 
ence is true, as well as upon reason, or what I at least conceive to 
be the reason of the case. 
Mr. HOAR.   Very well.   I agree with the Senator that we can 
establish each kind of a court separately.   Now. then, if we can 
establish both kinds of court for the same Territory, what kind 
of law, fundamental law, is in force after you have done it? 
When yon have established your constitutional court, is that to 
administer the Constitution as the valid supreme law of the place ' 
where it sits, or no; or can you establish a constitutional court 
over which court the Constitution of the United States has no 
authority?  
Mr. FORAKER.   Mr. President, I do not understand that there 
is any difficulty about that. 
Mr. HOAR.   I have difficulty about it. 
Mr. FORAKER.   The Constitutional court is fixed by the Con- 
stitution itself.   Congress could confer upon it additional juris- 
diction undoubtedly, but when we speak of a constitutional court 
we mean a court, as I understand it, that has the jurisdiction that 
is conferred by the Constitution. 
Mr. HOAR.   And the tenure. 
Mr. FORAKER.   Now, if you will consider, I do not think 
you will find any difficulty such as the Senator seems to have in 
his mind.   No matter where the court may sit, the judge is an 
officer appointed by the President of the United States, serving 
the United States, and under an oath of office that requires him 
to support the Constitution. 
Mr. BOAR.   That is it exactly. 
Mr. FORAKER.   And whenever he is called upon to admin- 
ister law he must administer it, of course, in accordance with the 
statutes and the Constitution of the United States. 
Mr. HOAR.   Exactly.   Then when you have got a constitu- 
tional court enactment by Congress, if I now understand the 
Senator, you have got the Constitution of the United States there 
to be administered and applied. 
Mr. FORAKER.   You have it --           
Mr. HOAR.   Let me state now. 
Mr. FORAKER.   Certainly. 
Mr. HOAR.   I am not putting a question, but making a state- 
ment. 
Mr. FORAKER.   It is so easy to answer that I am impatient. 
Mr. HOAR.   Perhaps it will not -- 
Mr. FORAKER.   I beg your pardon. 
Mr. HOAR.   Perhaps the Senator's impatience is what makes 
him think it is easy to answer.   It may be barely possible.   I only 
suggest it.   Now, my proposition is that if we concede, first, that 
the United States has the authority to establish a constitutional 
court; second, that it has lawfully done it; and third, that having 
lawfully exercised that authority the Constitution of the United 
States in all its provisions has extended to the territory within the 
jurisdiction of the United States, you can not escape the corollary 
that the Constitution is in force there, and that duties must be 
uniform, that exports from that place can not be taxed, that the 
persons in that Territory are citizens, that they have the right to 
go wherever in the United States they choose, and that everything 
the Senator from Ohio has by the right of his citizenship every 
dweller, every person on that soil, born there or lawfully there 
under the act acquiring it, has by the right of his citizenship.  
Now, I should like to know from my honorable friend how he 
escapes that result? 
Mr. FORAKER.   With very great pleasure.    
Mr. SPOONER.   Now will the Senator yield to me?   [Laugh- 
ter.] 
Mr. FORAKER.   I think in view of the very concise and di- 
rect question that was put to me by the Senator from Massachu- 
setts. I ought to say a word in answer; but I will yield to the Sen- 
ator from Wisconsin with very great pleasure, for I know we have 
unduly trespassed upon him.

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